RIGHTS OF UNPAID SELLER

                               RIGHTS OF UNPAID SELLER

  Seller

A party that makes, offers or contracts to make a sale to an actual or potential buyer. 

" Unpaid seller"

 The seller of goods is deemed to be an" unpaid seller" within the meaning of this Act-

(a) when the whole of the price has not been paid or tendered;

(b) when a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument 

Note
" seller" includes any person who is in the position of a seller, as, for instance, an agent of the seller.

 Unpaid seller' s rights.

(a) a lien on the goods for the price while he is in possession of them;

(b) in case of the insolvency of the buyer a right of stopping the goods in transit after he has parted with the possession of them;

(c) a right of re- sale as limited by this Act.

Seller' s lien.

The unpaid seller of goods who is in possession of goods is entitled to retain possession of them until payment or tender of the price in the following cases, namely:-

(a) where the goods have been sold without any stipulation as to credit;

(b) where the goods have been sold on credit, but the term of credit has expired;

(c) where the buyer becomes insolvent.

(2) The seller may exercise his right of lien even he is in possession of the goods as agent or bailee for the buyer.
 Part delivery.- Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien.

49. Termination of lien.

(1) The unpaid seller of goods loses his right of lien in the following cases:

(a) when he delivers the goods to a carrier or other bailee for the purpose of transmission to the buyer without reserving the right of disposal of the goods;

(b) when the buyer or his agent lawfully obtains possession of the goods;

(c) by waiver 

(2) The unpaid seller of goods, having a lien , does not lose his lien by reason only that he has obtained a decree for the price of the goods.

 Stoppage in transit

50. Right of stoppage in transit.-
when the buyer of goods becomes insolvent, the unpaid seller who has parted with the possession of the goods has the right of stopping them in transit, that is to say, he may resume possession of the goods as long as they are in the course of transit, and may retain them until payment or tender of the price.

51. Duration of transit.-

(1) Goods are deemed to be in course of transit from the time when they are delivered to a carrier or other bailee for the purpose of

transmission to the buyer, until the buyer or his agent in that behalf takes delivery of them from such carrier or other bailee.

(2) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end.

(3) If, after the arrival of the goods at the appointed destination, the carrier or other bailee acknowledges to the buyer or his agent that he holds the goods on his behalf and continues in possession of them as bailee for the buyer or his agent, the transit is at an end and it is immaterial that a further destination for the goods may have been indicated by the buyer.

(4) If the goods are rejected by the buyer and the carrier or other bailee continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back.

(5) When goods are delivered to a ship chartered by the buyer, it is a question depending on the circumstances of the particular case, Whether they are in the possession of the master as a carrier or as agent of the buyer.

(6) Where the carrier or other bailee wrongfully refuses to deliver the goods to the buyer or his agent in that behalf, the transit is deemed to be at an end.

(7) Where part delivery of the goods has been made to the buyer or his agent in that behalf, the remainder of the goods may be stopped in transit, unless such part delivery has been given in such circum- stances as to show an agreement to give up possession of the whole of the goods.

52. How stoppage in transit is effected.-

(1) The unpaid seller may exercise his right of stoppage in transit either by taking actual possession of the goods, or by giving notice of his claim to the carrier or other bailee in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice, to be effectual, shall be given at such time and in such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant or agent in time to prevent a delivery to the buyer.

(2) When notice of stoppage in transit is given by the seller to the carrier or other bailee in possession of the goods, he shall redeliver the goods to, or according to the directions of, the seller. The expenses of such re- delivery shall be borne by the seller.

Transfer by buyer and seller

53. Effect of subsale or pledge by buyer.-

(1) Subject to the provisions of this Act, the unpaid seller' s right of lien or stoppage in transit is not affected by any sale or other disposition of the goods which the buyer may have made, unless the seller has assented thereto: Provided that where a document of title to goods has been issued or lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for consideration, then, if such last men- tioned transfer was by way of sale, the unpaid seller' s right of lien or stoppage in transit is defeated, and, if such last mentioned transfer was by way of pledge or other disposition for value, the unpaid seller' s right of lien or stoppage in transit can only be exercised subject to the rights of the transferee.

(2) Where the transfer is by way of pledge, the unpaid seller may require the pledgee to have the amount secured by the pledge satisfied in the first instance, as far as possible, out of any other goods or securities of the buyer in the hands of the pledgee and available against the buyer.

54. Sale not generally rescinded by lien or stoppage in transit.-

(1) Subject to the provisions of this section, a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien or stoppage in transit.

(2) Where the goods are of a perishable nature, or where the un- paid seller who has exercised his right of lien or stoppage in transit gives notice to the buyer of his intention to re- sell, the unpaid seller may, if the buyer does not within a reasonable time pay or tender the price, re- sell the goods within a reasonable time and recover from the original buyer damages for any loss occasioned by his breach of contract, but the buyer shall not be entitled to any profit which may occur on the re- sale, If such notice is not given, the unpaid seller shall not be entitled to recover such damages and the buyer shall be entitled to the profit, if any, on the re- sale.

(3) Where an unpaid seller who has exercised his right of lien or stoppage in transit re- sells the goods, the buyer acquires a good title thereto as against the original buyer, notwithstanding that no notice of the re- sale has been given to the original buyer.

(4) Where the seller expressly reserves a right of re- sale in case the buyer should make default, and, on the buyer making default, re- sell, s the goods, the original contract of sale is thereby rescinded, but without prejudice to any claim which the seller may have for damages.

WHAT ARE THE POWERS AND FUNCTIONS OF INDUSTRIAL COMMISSION OF PAKISTAN

National Industrial Relations Commission.

(1) The Federal Government shall constitute a National Industrial Relations Commission consisting of eight members, including its Chairman.

(2) The Chairman and the members shall be appointed by the Federal Government.

(3) The qualification and terms and conditions of service for appointment as Chairman and member of the Commission shall be determined by the Federal Government.

 The functions of the Commission.

1.Adjudication of dispute.

 To adjudicate and determine an industrial dispute to which an industry-wise trade union or a federation of such trade unions is a party.

•  And any other industrial dispute which is of national importance and is referred to it by Federal Government;
• (b) register industry-wise trade unions, federations of such trade unions and federations at the national level and carry out ratings of the trade unions and federations registered by it in terms of their standing and representative character;
• (c) determine the collective bargaining agents amongst industry-wise trade unions, federations of such trade unions and federations at the national level;
• (d) try offences punishable under-
  • (i) section 65, other than sub-sections (1) and (5) thereof; and
  • (ii) any other provisions, in so far as they relate to employers or workers in relation to an industry-wise trade union, a federation of such trade unions, a federation at the national level or office-bearers of such unions or federation;

(e) deal with cases of unfair labour practices on the part of employers, workmen, collective bargaining agents, industry-wise trade unions.

(f) advise Government, industry-wise trade unions and federations in respect to the education of workers in the essentials of trade unionism, including education in respect of their rights and obligations, and to secure the provision of facilities required.

(g) promote healthy trade unionism whether in establishments within a Province or in more than one Province and federations of such trade unions; 

(h) facilitate the formation of federations at the national level; and

(i) exercise such other powers and perform functions as the Federal Government may by notification in the official Gazette, assign to it from time to time.

(5) The Commission may, on the application of a party, or of its own motion-

• (a) initiate prosecution, trial or proceedings or take action, with regard to any matter relating to its functions; and
• (b) withdraw from a Labour Court any application, proceedings or appeal relating to unfair labour practice.

(6) For the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may-

• (a) proceed directly with the case;
• (b) ask the Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report; or
• (c) refer the case to the Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal.

50. Benches of the Commission, etc.- (1) The Chairman of the Commission shall exercise general superintendence over its affairs.
(2) For the efficient performance of the functions of the Commission, the Chairman of the Commission shall constitute-

• (a) a Full Bench of the Commission which shall consist of not less than three members of the Commission; and
• (b) as many other Benches of the Commission consisting of one or more members of the Commission as he may deem fit.

(3) The Benches shall-

• (a) in relation to cases based on allegations of unfair labour practices brought before the Commission for trial of offences, or enforcement of, or for redress of individual grievances in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement, perform such functions and exercise such powers as are performed and exercised by a Labour Court; and
• (b) in relation to industry-wise trade unions, federations of such trade unions, federations at the national level and cases referred to the Commission, perform such functions and exercise such powers as are performed and exercised by a Registrar or a Labour Court in relation to trade unions and federations of trade unions within a Province,

and, for this purpose, any reference in this Ordinance to a "Registrar" or "Labour Court", as the case may be, shall be deemed to be a reference to the appropriate Bench of the Commission to which such functions are assigned:
Provided that, in the performance of those functions and in the exercise of those powers, the Benches shall, unless otherwise provided in this Ordinance, follow the procedure laid down in the regulations to be made under section 55.
(4) If any member of the Commission is absent from, or is otherwise unable to attend any sitting of the Commission or of a Bench consisting of more than one member of which he is a member, the proceedings of the Commission or Bench may continue, and the decision or award may be given or judgment or sentence may be passed in the absence of such member and no act, proceedings, decision, or award of the Commission or Bench shall be invalid or be called in question merely on the ground of such absence or of the existence of vacancy in or any defect in the constitution of the Commission or Bench.
(5) If the members of a Bench differ in opinion as to the decision to be given on any point-

• (a) the point shall be decided according to the opinion of the majority, if there is a majority; and
• (b) if the members are equally divided, they shall state the point on which they differ and the case shall be referred by them to the Chairman for hearing on such point by one or more of the other members of the Commission and such point shall be decided according to the opinion or the majority of the members of the Commission who have heard the case, including those who first heard it:

Provided that if upon any matter requiring the decision of a Bench which includes the Chairman of the Commission as one of its members, there is a difference of opinion among its members and the members so constituting the Bench are equally divided, the opinion of the Chairman shall prevail and the decision of the Bench shall be expressed in terms of the views of the Chairman.
(6) Any order of decision made, award given, sentence passed, power exercised, function preformed or proceedings taken by any Bench of the Commission in accordance with this Ordinance and the order constituting the Bench shall be deemed to be the order or decision made, award given, sentence passed, power exercised, function performed or proceedings taken, as the case may be, by the Commission.
Explanation.- In this section, the expression 'the Chairman of the Commission' includes such member of the Commission (to be known as Senior Member) as the Federal Government may nominate to perform the functions and exercise the powers of the Chairman during his absence.
51. Additional powers of the Commission.-In addition to the powers which the Commission has under section 50-
(a) the Commission shall have power to punish any person who obstructs or abuses its process or disobeys any of its order or directions or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members in relation to proceedings of the Commission into hatred or contempt, or does anything which , by law, constitutes contempt of court, with fine which may extend to forty thousand rupees; and
(b) for the purpose of any investigation, inquiry or adjudication to be made by the Commission under this Ordinance, the Chairman or any member of the Commission may at any time between the hours of sunrise and sunset, and any other person authorized in writing by the Chairman or any member of the Commission in this behalf may, after he has given reasonable notice, enter any building, factory, workshop, or other place or premises whatsoever and inspect the same or any work, machinery, appliance or article therein or interrogate any person therein in respect of anything situated therein or any matter relevant to matters before the Commission.
52. Appeals.- (1) Notwithstanding anything contained in this Ordinance, or in any other law for the time being in force, any person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission, other than a Full Bench, may, within thirty days of such award, decision, sentence or order, prefer an appeal to the Commission.
(2) An appeal preferred to the Commission under sub-section (1) shall be disposed of by the Full Bench of the Commission which shall have the power to confirm, set aside, vary or modify such award, decision, sentence or order.
53. Finality of order.- No Court shall entertain any plea as to the jurisdiction of the Commission or an application or as to the legality or propriety of anything done or purporting to be done by the Commission or any of its Benches, and no order, decision, judgment or sentence be called in question in any manner whatsoever, in or before any Court or authority.
54. Determination, etc., of collective bargaining unit.- (1) Where the Commission, on an application made in this behalf, by a trade union of workmen or a federation of such trade unions, or on a reference made by the Federal Government, after holding such inquiry as it deems fit, is satisfied that for safeguarding the interest of the workmen employed in an establishment or group of establishments belonging to the same employer and the same industry, in relation to collective bargaining, it is necessary, just and feasible to determine one or more collective bargaining units of such workmen in such establishment or group of establishments, it may, having regard to the distribution of workers, existing boundaries of the components of such establishment or group of establishments, facilities of communication, general convenience, sameness or similarity of economic activity and other cognate factors-

• (a) determine and certify one or more collective bargaining units in such establishment or group of establishments;
• (b) specify the modifications which, in consequence of the decision under this section, shall take effect in regard to the registration of the trade unions and federations of trade unions affected by among such unions and federations, nomination or election of Shop Stewards, and workers' representatives for participation in the management of the factories, if any, affected by such decision;
• (c) specify the date or dates from, and the period for which, all or any of such changes shall take effect:
  Provided that the date so specified shall not be a date falling within the period of three years specified in sub-section (11) of section 20 in its application to a collective bargaining agent certified in respect of an establishment or establishments:
  Provided further that, after the receipt of a reference for determination of a collective bargaining unit, the Commission may stop or prohibit the proceedings to determine collective bargaining agent under section 20 for any establishment or group of establishments which is likely to be affected by a decision made under this section.
• (d) take such measures or issue such directions to the Registrar as may be necessary to give effect to such modifications; and
• (e) determine and certify a collective bargaining agent for each such unit in accordance with section 20, in so far as applicable and with necessary modifications, if such a unit relates to more than one Province, or direct the Registrar to take such action, if such a unit relates to only one Province.

(2) Where the Commission issues any directions to the Registrar under this section, the Registrar shall comply with them within such period as the Commission may from time to time determine.
(3) After the certification of a collective bargaining unit, no trade union shall be registered in respect of that unit except for the whole of such unit and no certification or proceedings for determination of collective bargaining agent under section 20 shall take place for a part of a collective bargaining unit or a group of collective bargaining units.
(4) An order of the Commission under this section shall have effect notwithstanding anything to the contrary contained in this Ordinance.
55. Power to make regulations.- (1) Subject to the provisions of this Ordinance, the Commission may, with the prior approval of the Federal Government, make such regulations relating to its procedure and the performance of its functions as it may deem fit.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:-

• (a) registration on industry-wise trade unions, federations of such trade unions and federations at the national level, and the procedure for such registration;
• (b) determination of collective bargaining units;
• (c) determination of collective bargaining agent from amongst the industry-wise trade unions, federations of such trade unions or, as the case may be, federations at the national level, and the procedure therefor;
• (d) procedure, including rules of evidence, for adjudication of industrial disputes;
• (e) procedure, including rules of evidence, for trial of offences;
• (f) procedure for dealing with unfair labour practices;
• (g) superintendence of the Chairman over the affairs of the Commission;
• (h) forms of registers, processes and returns in respect of matters relating to the functions of the Commission; and